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S T A T E O F C O L O R A D ODEPARTIN'! EN’TOF LAW

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OFFIOF. O F T I I R A T T O K M Y G F M R \!

D a m f i D. D o m f .m c o

Solicitor General

FO R M A LNo. 06-07

OPINIONAG Alpha No. RG ME AGBBY

OFSeptember 5, 2006

JOHN VV. SLITHERS Attorney General

This opinion concerns w hether the Board o f Medical Examiners ('‘Board”) is authorized

to take disciplinary action for a criminal ''conviction" pending appeal of that conviction.

Q uestion /: Does the Medical Practice Act, subsections 12-36-117( 1)(f) and (h), C.R.S.

(2005), allow the Board to take disciplinary action or deny licensure based upon one of the

enumerated convictions if that conviction is the subject of a pending appeal?

Answ er: Yes. The Medical Practice Act must be construed in conformity with the

Board's purpose to protect the public against the "unauthorized, unqualified, and improper

practice o f the healing arts in this state." § 12-36-102(1). An interpretation o f subsections 12-

36-117( 1)(Ij and (h) requiring the Board to await the exhaustion of criminal appeals before

imposing disciplinary action or denying licensure would be contrary to this purpose.

Q uestion 2: Is this interpretation consistent with the Opinion o f Attorney General Duane

QUESTIONS PRESENTED AND ANSWER

1.' V-1 >< * I ' t MV. I 11 v; i IVV^VUMUV- y ( i l l K . U < M A i K t l t ^ L ' VM U C I I V d l l < I jA [7 111 t II I U I I K M d I I L ’ L’ I ISC*

before a direct appeal of the com action is completed'.’

Answer: No. A portion o f the anaivsis in 1 ‘>85 A ( i Opinion was incorrect anti is herebv

reversed. Under the rules of statutory interpretation, the General Assembly's definition and

purpose behind the statute control our statutory analysis o f a term.

RULES OF STATUTORY CONSTRUCTION

This opinion employs the rules o f statutory construction applied by courts. In construing

a statute, vve strive to give effect to the General Assembly's intent and adopt the statutory

construction that best effectuates the purposes of a legislative scheme, looking first to the plain

language o f the statute. See, e.g ., S pam er v. (Juliette , 113 P.3d 158, 162 (Colo. 2005). Where

the statutory language is clear and unambiguous, we do not resort to any further rules of statutory

construction, hi. Words and phrases must be read in context and construed according to the

rules o f grammar and common usage. Where words ami phrases have acquired a technical or

particular meaning, whether by legislative definition or otherwise, they must be construed

accordingly. §2-4-101.

When the General Assembly adopts a comprehensive regulatory scheme, we construe the

legislation as a whole and, where possible, give a harmonious effect to each of its parts. U nited

A irlines, Inc. v. Industrial Claim A ppea ls Office, 993 P.2d 1 152, 1 157 (Colo. 2000). I f the

statutory language is unambiguous, we presume the General Assembly meant what it clearly

said. Id.

When the legislature defines a term, that definition governs. Colo. W ater C onservation

Bd. v'. U pper Gunnison R iver W ater C on servancy D ist., 109 P.3d 585, 597 (Colo. 2005). Except

wherever the term is used throughout that statute, hi. at 598.

l \ A ( K G U 0 1.!MI> A N0 AN ALVSIS

At issue here is the following language in the Medieal Praetiee Ael ("MPA"), seetion 12-

36-1 I 7( 1 ):

"l ^professional eonduct"' as used in this article means:

(0 Any conviction of an offense of moral turpitude, a felony, or a crime that would constitute a violation of this article. For purposes of this paragraph (f), ''conviction" includes the entry o f a plea o f guilty or nolo contendere or the imposition o f a deferred sentence.

(h) Any conviction o f violation o f any federal or state law regulating the possession, distribution, or use o f any controlled substance, as defined in section 12-22-303(7), and, in determining if a license should be denied, revoked, or suspended, or if the licensee should be placed on probation, the board shall be governed by section 24-5-10 1, C.R.S. For purposes o f this paragraph (h). "conviction" includes the entry of a plea of guilty or nolo contendere or the imposition o f a deferred sentence.

Acts or omissions that constitute "unprofessional conduct" under section 12-36-117 form a basis

for Board action denying medical licensure to or taking disciplinary action against the license of

a physician or physician assistant. See §§ 12-36-104, -1 16( 1 )(b), and -118(5).

The General Assembly has defined the term "conviction" in a number of statutes, and the

meaning o f the term "conviction" varies depending upon the statute in which it is used and the

purpose behind the statute. See P eop le r. H am pton. 876 P.2d 1236, 1230 (Colo. 1994). The

purpose o f the MPA is to protect the public against the "unauthorized, unqualified, and improper

practice o f the healing arts in this state." § 12-36-102(1). The MPA must be construed in

conformity with this declaration of purpose, id., and the term "conviction" as used in subsections

purpose.

Subsections ! 2-36-1 I 7 (! )(f) and (h) partia lly define the term "conv ic tion" to include "the

entry of a plea o f guilty or nolo contendere or the imposition o f a deferred sentence." See § 12-

36-1 1 7( 1 )( 0. (h). The General Assembly was silent, however, as to when a criminal charge that

proceeds to trial becomes a conviction. In furtherance of the MI’A's purpose and the Board's

duty to protect the public, however, the term "conviction” in the MPA should be interpreted to

include a finding of guilt by the bench or by jury and sentencing, even if appeals have not been

exhausted. See § 12-36-102( 1). The General Assembly's inclusion of the entry o f a plea of

guilty or the imposition o f a deferred sentence within the definitions at issue supports this

interpretation.

The phrases "nolo contendere" and "imposition of a deferred sentence" have particular

meanings found outside the MPA. A nolo contendere plea, also known as an "Alford1" plea, is a

common law plea that means "I do not w ish to contend." It may be entered with the court's

consent and is allowed liberally. Colo. R. Crim. P. 11; § 16-7-205 (listing authorized pleas);

P eople v. D arlin gton , 105 P.3d 230, 233 (Colo. 2005). Unlike a guilty plea, a nolo contendere

plea does not estop the defendant from denying fault in a civil action based upon the same facts.

hi. Nevertheless, pursuant to subsections 12-36-117( 1 )(f) and (h), a physician or physician

assistant w ho entered a plea of nolo contendere would be estopped from denying accountability

under the MPA.

Imposition of a deferred sentence is created and authorized under section 18-1.3-102( 1).

To impose a deferred sentence, a court must accept entry o f a defendant's guilty plea. The court

probationary c o n d i t i o n s . § 18-1.3-102(1). Gpon the defendant's full compliance with

n r o b a l i o n a r v c o n d i t i o n s . **the plea of guiltv p r c w i o u s l v entered shall be withdrawn and the charge

upon which die judgment and sentence of the court w as deferred shall be dismissed with

prejudice." g I 8 -1.8-102(2). hollow mg..successful completion of a deferred sentence, ’'there no

longer exists a plea of guilty to a felony, and there newer existed a judgment of conviction.”

W eber v. Colo. Stale Hd. o f Nursing, 830 P.2d 1 128. 1 133 (Colo. App. 1992). For purposes of

the MPA. however, disciplinary action may be imposed or medical licensure denied following

entry o f a deferred sentence. See § 12-36-1 17( 1)(f) and (h).

Consistent with public protection, the General Assembly defined the term "'conviction” as

used in the MPA broadly by including the entry o f a plea of nolo contendere or the imposition of

a deferred sentence in the definition. With respect to the identified offenses, the General

Assembly determined that, without requiring admission of guilt to the underlying conduct or

even finality of a guilty plea, the fact of conviction provides a reasonable basis for the Board to

believe the licensee engaged in unprofessional conduct and subjects physicians to disciplinary

action or denial of licensure.

Additionally, whereas other statutes specify that a court must "accept” an individual's

guilty or nolo contendere plea, the MPA only requires "entry” of such a plea. Cf. § 12-38.1 -

1 1 1(1 )(b) (under statute regulating nurse aides, authorizing discipline of person who has been

convicted of a felony or has had a court "accept a plea” of guilty or nolo contendere to a felony).

The General Assembly expressed no intention to make "conviction” contingent upon any later

occurrence, such as acceptance o f the plea, sentencing, final judgment of conviction, motion to

withdraw a plea, or, as relevant here, exhaustion o f a direct or collateral anneal C f 8 47-20-

transportation of hazardous material permit statute): $ 42-20-305(4) (same lor transportation of

hazardous materia! route violation statute). Further, the (ieneral Assembly chose to make I lie

conviction itself, rather than the underlying conduct, a basis for disciplinary action by the Board.

C om pare s' I 2-30-117(1)(I ) and (h) (conviction constitutes grounds to discipline a license to

practice medicine) with $ 12-38-117(d )(1) (grounds lor discipline of a nursing license include

conduct "constituting a crime" and related to employment as a nurse).

Consistent with the purpose o f the MPA. "conviction" as used in subsections 12-36-

1 1 7( I )(f) and (h) should be interpreted to require only an act that allows the criminal court to

enter a sentence, such as the individual's "entry of a plea" or the court's finding or jury's verdict

of guilt. I Inder that reading, the M PA allows the Board to take disciplinary action based upon

conviction o f one o f the identified offenses, even if that conviction is pending appeal. See Lamb

r. People, 1 74 Colo. 441,484 P.2d 798 (1971) (judgment o f conviction is presumed valid);

a cco rd P eo p le r. Tram aglino , 791 P.2d 1171 (Colo. App. 1989).

This interpretation is consistent with section 24-5-101. Under section 12-36-11 7( 1 )(h) of

the MPA, the Board is governed by section 24-5-101 when determining whether controlled

substance-related convictions form a sufficient basis for disciplinary action or license denial.

The purpose of section 24-5-101 is "to expand employment opportunities for persons who.

notwithstanding that fact of conviction o f an offense, have been rehabilitated and are ready to

accept the responsibilities of a law-abiding and productive member o f society." § 24-5-101(2).

The effect of that section, when read with the MPA, is that a conviction, in and of itself, is not

sufficient to warrant denial or discipline o f a license without considering the "pertinent

circumstances . . . to determine the moral character of the annliermt m- lirene^ " r u.i

. o v ; v . n / _ \ V. u i u . i v / v ; . | J i ( J

Board’s consideration o f these circumstances may occur alter a licensee lias been found guilty or

entered a plea a llow ing the crim inal court to enter a sentence.

i he Colorado Supreme Court has taken a similarly broad view of the definition of the

word "conviction" in a professional disciplinary context. For example, in P eople v. Wilson. 814

P.2d 7bI. 7b2 (Colo. 0 9 1 ). the Court explained that the hearing board considering an attorney

disciplinary proceeding found that, despite the disciplined attorney’s assertion that he was "not

guilty" o f the offense for which he received a deferred sentence, the attorney nevertheless had

"no defense” to the Grievance Committee's disciplinary charges related to the plea. In P eople v.

Barnthonse. 941 P.2d 916 (Colo. 1997), the Court found that a lawyer must report to the

Grievance Committee a guilty plea followed by a deferred sentence, even though the provision

defining reportable "convictions’’ to include a deferred sentence was adopted after the lawyer

pled guilty. The Court reasoned:

The purpose o f lawyer discipline proceedings is the protection o f the public and the requirement that a lawyer report his or her criminal conviction is in furtherance o f that purpose. A guilty plea followed by a deferred judgment was therefore a conviction for reporting requirements under C.R.C.P. 2 4 1 .16(b) prior to the enactment ofC.Il.C7P. 241.16(h) [defining "conviction" as used in the Rules to include a deferred judgment and sentence],

h i atp.918.

An interpretation o f subsections 12-36-1 17( I )(f) and (h) that required the Board to await

exhaustion of appeals prior to imposing discipline upon a physician's license or deny ing

licensure to a physician would not be consistent with the broad definition of "conviction" defined

therein to include pleas o f nolo contendere and imposition o f deferred sentence. Further, such an

i n t c r n r p f n t i n n w / m i M n / v f n o m m d o n t \ / f n a — J i ' * - -------l v - 1 i *

In 1985. this office issued a formal Opinion addressing, in part, whether the Lottery

I Jivision of the Department of Revenue ear, revoke a license or deny an application for a licensei t (

before a direct appeal of the conviction is completed. March 12, 1085. Opinion o f Attorney

General Duane Woodard ( 1985 Wl. 19420b) ("1985 AG Opinion"). The 1985 AG Opinion

concluded that the Lottery Division could not revoke a license or deny an application for a

license based upon a felony conviction until the direct appeal for that felony conviction was

completed. At issue in the 1985 AG Opinion was language allowing the agency to revoke a

license upon finding that the licensee "l ias been convicted o f any felony or gambling-related

offense." See 1985 AG Opinion, p.l; 1982 Colo. Sess. Laws, eh. 100, p. 375-76. § 24-35-

206(2)(a)(ll).

In construing the term "conviction" in that statute, the 1985 AG Opinion addressed when

a conv iction becomes final. The 1985 AG Opinion observed that “In criminal matters,

convictions are usually final prior to completion of direct appeals." while "[ i |n civil matters in

Colorado in which person's rights are affected by conviction of a felony, conviction is not final

until direct appeals have been exhausted." 1985 AG Opinion, p.2.

For its statement regarding criminal matters, the 1985 AG Opinion relied on two criminal

sentencing cases: P eop le f. Dist. C ou rt. 559 P.2d 235, 236 (Colo. 1977) (holding that a

defendant may be adjudicated as a habitual offender based upon convictions for which appeals

are pending, and that any other interpretation would be "clearly inconsistent with the obvious

purpose o f the statute, which is to punish repeat offenders"), and P eople v. Dist. C ou rt, 554 P.2d

1 105 (Colo. 1976) (holding that in light of the purpose and procedures under the relevant

sentencing hearing even i f that prior conviction is subject to appeal).

As a basis lor its opinion regarding c iv il matters, the 1985 At I Opinion relied on Hummel

r. fid. o f C h iropractic E xam iners. 87 P.2d 24,8 (Colo. 193')), and R ead r. R ead. 202 P.2d 953

(Colo. 1949). In H u m m el. the Court considered a licensing statute that allow ed an agency to take

d iscip linary action tor "'the com action o f a crime invo lv ing moral turpitude.'' 87 P.2d at 248.

There, the licensee was convicted o f petty larceny at tria l, prevailed on appeal, and the

convictions were reversed. The agency in H um m el proceeded w ith a d iscip linary hearing, even

after the convictions were reversed. The Court determined that the agency lacked ju risd ic tion to

proceed and. by pursuing the case after the convictions were reversed, the agency "undertook to

function as a substitute tribunal'' for the crim inal court. 87 I’ .2d at 250. The Court stated that

"p ro o f o f the final and conclusive conviction o f a crime . . . would, o f course, be sufficient

ground for suspension or revocation o f a license.” 87 P.2d at 248.

Likewise, in R ead, a marriage dissolution case, the Court considered w hether the w ife

had committed "w rong fu l conduct.” which would relieve the husband's obligation to support her.

The Court concluded that, though the w ife had been convicted twice, " i f upon review in this

court the judgm ent o fco n v ic tio n is reversed, she has not been convicted o f a felony for which

defendant could maintain an action in divorce.” Read, su p ra , 202 P.2d at 957.

The 1985 AG Opinion also found support from H um b o ld t O il Co., Inc. v. Exxon Co., 532

F.Supp. 896 ( D.C.Nev. 1982) ("H u m b o ld t I") , rev 'd . 695 F.2d 386 (9th Cir. 1982). In H um bold t

l, the district court interpreted a franchise contract provision that allowed'the franchisor to

terminate the contract upon "conviction o f the franchisee o f any felony involv ing moral

turpitude.” lanmiaee from the Petroleum Marketing Practices Act I 5 t f 51 C ,x ? R O l c t ™

(rial court conviction was not a conviction because a direct appeal was pending, and the court

agreed, Considering the statute's intent to level bargaining power disparitv and m inim ize

franchisors' use o f termination as a weapon, the court held that the term ' ’conviction" means final

conviction after I he direct appeal resolved. H um bold t I. 532 F.Supp. at 901. The court's

conclusion was based on federal law and recognized that interpretation should be based on

overall statutory intent.

On appeal, the Ninth C ircu it reversed H um bold t / in H um bold t O il Co., Inc. v. Exxon Co .,

supra {"H um bold t II"). That reversal is not discussed in the 1985 AG Opinion.

The court in H um bold t II reconsidered the statutory intent to protect franchisees against

unreasonable or arbitrary termination. The court observed that ’’Good faith be lie f o f the

franchisor that the franchisee is untrustworthy or engages in fraudulent practices undermines the

entire franchise relationship. Conviction in the trial court provides a reasonable basis for such a

belie f." H u m bold t //, 695 F.2d at 389. Thus, the court held the remedial intent o f the Petroleum

M arketing Practices Act is fu llllie d by interpreting ’’conviction" to mean conviction by a trial

court, even w hen an appeal is pending. Id.

A recent Colorado adm inistrative law judge (’’A L T ') order discussed the 1985 AG

Opinion and rejected its conclusion. Order Granting Summary Judgment; In the M atter o f

D isc ip lin a ry P roceed ings ag a in st the B ail B ond ing L icense o f S teven P a trick M ares, Sr.,

D ivis ion o f Adm inistrative Hearings,2 Case Number IN 2001-005 ("M ares").

In M a res , the licensee entered into a deferred sentence, but the crim inal court revoked it

and entered a judgment o f conviction, which the licensee appealed. W hile the appeal was

defined as grounds for discipline o f a hail bonding license: "Conviction o f a felony within the

last ten wars, regardless o f whether the conviction resulted from conduct in or conduct related to

the bail bond business.” I ()% Colo. Sess. Laws. eh. d e l. p. ! 1 84. $ 12-7-1 (.)(>( I)(e). The agency

moved for summary judgment as to the existence o f a felony conviction.

In granting the agency's motion, the AI J found the 1985 AG Opinion "is not persuasive

and relies in part on a jud ic ia l interpretation w hich has been overturned [H um bold t / | . " M arcs,

Order Granting Summary Judgment and In itia l Decision (February 27, 2002), p.5. Though the

bail bonding statute lacked a "d irect statement o f legislative intent," the AI.J found that the

statute evinced the leuislature's determination that a felony conviction "renders bail bondirm

agents unfit to obtain or maintain their licenses," and. further, that the purposes o f the statute do

not require formal actions o f a judgment and sentencing. I d at p.4. The ALJ thus concluded that

the term "co in iction” as used in the statute refers to the court's acceptance o f a gu ilty plea and

that a conviction occurs irrespecti ve o f w hether any subsequent judgment o f conviction is on

appeal. I d at p.3.

W hile this O ffice agrees w ith portions o f the 1985 AG O pinion 's analysis based on

Colorado authority, we conclude that a portion o f the analysis in 1985 AG Opinion was

incorrect. Insofar as that analysis d iffers from the one here, we emphasize that, under the rules

o f statutory interpretation, the General Assem bly's defin ition o f a term controls wherever the

term is used throughout the statute. See Colo. W ater C onservation B d v. U pper G unnison R iver

W ater C on serva n cy D ist., supra . In light o f the General Assem bly's m ultip le defin itions o f

terms like ‘'conviction" in various statutes, we support statutory analysis that focuses on the

statute in which it is used and the purpose behind the statute. See P eop le v. H a m p to n , supra.

C O N C L U S IO N

hi conform ity with the purpose o f the MPA, the Board is authorized to take d iscip linary

action against in* denv application for a license to practice medicine based upon one o f the

convictions enumerated in the statute, even i f that conviction is the subject o f a pending appeal.

To the extent that this interpretation is inconsistent w ith the 1985 AG Opinion, the 1985 AG

Opinion is reversed.

Issued this 5th day o f September, 2006.

JOIjN iW. SLITHERS

Cojcii/fdo Attorney Generaly

o‘■>0.

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